Shyam Baliram Gadbail vs State Of Mah.Thr.Ps Achalpur
2017 Latest Caselaw 9143 Bom

                                                       1                                   jg.apeal.514.05.odt


                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR.

                           CRIMINAL APPEAL NO. 514 OF 2005

Shyam s/o Baliram Gadbail  
aged about 38 years, 
R/o. Bilanpura, Achalpur, Tq. Achalpur, 
District - Amravati.                                                                            ... Appellant

             VERSUS

The State of Maharashtra 
through P.S, Achalpur, 
District - Amravati.                                                                         ... Respondent
-------------------------------------------------------------------------------------------------
None for the appellant
Shri A. M. Deshpande, Additional Public Prosecutor for the respondent 
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  R. K. DESHPANDE AND
                                                                 M. G. GIRATKAR, JJ.

Date of reserving the judgment : 20/11/2017.

Date of pronouncing the judgment : 29/11/2017

Judgment (Per : M.G. Giratkar, J)

Appellant challenged the impugned judgment of conviction

passed by the Additional Sessions Judge, Achalpur, for the offence

punishable under Section 302 of the Indian Penal Code by which he is

sentenced to undergo rigorous imprisonment for life and to pay fine of

Rs. 1,000/- in default to suffer further simple imprisonment for one

month by judgment dated 20-5-2005.

2 jg.apeal.514.05.odt

2. The case of the prosecution against the appellant in short is

as under.

(i) The appellant is brother-in-law of deceased Suvarna. Before the

incident, deceased Suvarna always used to quarrel with the appellant.

She was always abusing the appellant. One and half month before the

incident, children of deceased were playing on tricycle. On that count,

appellant quarreled with deceased. Deceased scolded the appellant.

Appellant assaulted deceased. On the day of incident, deceased was

sleeping on the tiles in the house. Appellant lifted one stone and beat

the deceased on her head. Deceased sustained head injury.

(ii) Appellant himself went to Police Station, Achalpur and lodged

the report on the same day i.e. on 25-6-2004. Crime was registered by

PSI Shri Shegokar. Husband of Suvarna taken the deceased in the

hospital. She died during the treatment. Postmortem was conducted.

As per the opinion of the Doctor, deceased died due to injury to vital

organ i.e. brain. PSI Shegokar investigated crime, prepared spot

panchanama, seizure panchanama etc., recorded statements of

witnesses and after complete investigation, filed charge-sheet before the

Judicial Magistrate First Class, Achalpur. The Judicial Magistrate First

3 jg.apeal.514.05.odt

Class, Achalpur committed the case to the Sessions Court, Achalpur.

(iii) Charge was framed by the trial Court at Exhibit 3. The same was

readover and explained to the appellant. Appellant denied the said

charge and claimed to be tried.

(iv) Prosecution has examined following witnesses.

(1) P.W. 1 Ramkrishna Ganpat Gadbail (Exhibit 9) (2) P.W. 2 Baliram Tulsiram Gadbail (Exhibit 10) (3) P.W. 3 Ram Baliram Gadbail (Exhibit 11) (4) P.W. 4 Gunwanta Nathuji Mawale (Exhibit 12) (5) P.W. 5 Prakash Dattuji Ingale (Exhibit 14) (6) P.W. 6 Pramod Uttamrao Bhonde (Exhibit 16) (7) P.W. 7 Dnyandeo Shilpatrao Shegokar (Exhibit 23)

3. None appeared for the appellant. Heard learned Additional

Public Prosecutor Shri A. M. Deshpande for the State/respondent.

4. Perused the evidence on record. All the material witnesses

turned hostile except husband of deceased. P.W. 3 husband of

deceased, Ram Gadbail has stated in his evidence that there was quarrel

before one and half month of the incident. Accused assaulted deceased.

Deceased scolded appellant. Accused kicked on her stomach and

threatened to kill her. On 25-6-2004, he was in the shop. He learnt

4 jg.apeal.514.05.odt

that his wife was not feeling well, therefore, he came to house. He saw

deceased in injured condition. She has bleeding injuries on her head.

She was not in a position to talk. He had taken her to the hospital.

Thereafter he learnt that appellant committed murder of his wife by

assaulting stone on her head.

5. P.W. 1 and P.W. 2 uncle and father of appellant not

supported to the prosecution. P.W. 4 proved spot panchanama, Exhibit

13. P.W. 5 Head Constable Ingale has stated that on 25-6-2004, he was

on station diary duty in the police station. Accused came to the police

station at about 1.30 p.m. and told that he assaulted wife of his brother

by stone. PSI Shegokar recorded his report.

6. P.W. 7 has stated that he had recorded the oral report

stated by the appellant, at Exhibit 24. Accordingly, he registered crime

vide First Information Report, Exhibit 25. He has stated that he went to

the spot of incident and prepared spot panchanama, Exhibit 13. He

seized stone from the spot of incident. He has stated that he received

postmortem report. He had seized clothes of deceased and accused. He

sent all the seized property to C.A., Nagpur vide letters, Exhibit 27 and

28.

5 jg.apeal.514.05.odt

7. Defence has admitted inquest panchanama, Exhibit 15,

postmortem report, Exhibit 20. Court itself called witnesses, Vijaya

Shamrao Gadbail, wife of appellant, mother-in-law of appellant

Shalinibai Wasantrao Gulhane and one witness viz. Sudhakar Motiram

Tayade as Court witnesses.

8. The case of the prosecution only rested on the statement/

report given by appellant/accused before the police. Court witness,

namely, Vijaya, wife of appellant and her mother Shalinibai Gulhane

not stated anything against the appellant. Court witness Sudhakar

Tayade stated about the panchanama.

9. Perused the impugned judgment. Learned trial Court only

relied on the report given by the accused vide Exhibit 24. Learned trial

Court wrongly recorded its findings that the circumstances stated in the

report can be considered. The prosecution has not produced any C.A.

report on record. Prosecution also not produced seized weapon i.e. the

stone before the Court.

10. From the perusal of evidence on record it is clear that

except the evidence of P.W. 5 and P.W. 7, there is no other evidence

against the appellant. P.W. 3 Ram Gadbail has stated only about the

6 jg.apeal.514.05.odt

previous quarrel. But it is a material omission brought on record in his

cross-examination. He came to the spot of incident when he learnt that

his wife was not feeling well. Therefore, his evidence is not useful to

the prosecution.

11. Whatever evidence stated by P.W. 5 Head Constable Ingale

amount to confession before the police. Therefore, it is not admissible

in view of Section 25 of the Indian Evidence Act. Head Constable Ingale

has stated that he was on duty in the police station on 25-6-2004. At

about 1.30 p.m., appellant came to the police station and told that he

had assaulted wife of his brother Suvarna by stone. This particular

evidence is not admissible as per Section 25 of the Indian Evidence Act.

12. P.W. 7 PSI Shegokar has stated that he was present in

the police station. Appellant came to the Police Station and narrated

that he assaulted wife of his brother by stone on her head with

intention to cause her death. He reduced the said report into writing

vide Exhibit 24. Thereafter crime was registered vide printed FIR,

Exhibit 25.

13. Evidence of P.W. 6 is in respect of panchanama of the spot

of incident. Witnesses examined by the Court on its own not supported

to the case of prosecution. Wife of appellant and his mother-in-law

7 jg.apeal.514.05.odt

stated that behaviour of the appellant is good. There was no any

quarrel with deceased.

14. Learned trial Court without any corroborative evidence

wrongly convicted the appellant. From the perusal of judgment, it is

clear that learned trial Court has taken into consideration the report

lodged by appellant. The report, Exhibit 24 was lodged by appellant

himself in the police station in which he has confessed about his guilt.

As per Section 25 of the Indian Evidence Act, confession before the

police is not admissible. Evidence of P.W. 5 and P.W. 7 in respect of

statement given by the appellant amounts to confession and, therefore,

not admissible as per Section 25 of the Indian Evidence Act.

15. Learned trial Court itself in its judgment noted that C.A.

reports are not filed on record and stone was not produced before the

Court. There is no other evidence except the evidence of Head

Constable Ingale and PSI Shegokar about the incident narrated by the

appellant. Learned trial Court wrongly convicted the accused without

considering the provisions of Section 25 of the Indian Evidence Act.

Prosecution has not adduced any other evidence to prove that appellant

has committed murder of deceased Suvarna. Hence, impugned

8 jg.apeal.514.05.odt

judgment is liable to be quashed and set aside. In the result, we pass

the following order.

                                       ORDER

         (i)     The appeal is allowed.  

(ii) The impugned judgment is hereby quashed and set aside.

(iii) Appellant Shyam s/o Baliram Gadbail is hereby acquitted of

the offence punishable under Section 302 of the Indian Penal

Code.

(iv) Fine amount, if paid, be refunded to the appellant.

(v) Appellant is on bail. His bail bond stands cancelled.

(vi) R & P be sent back to the trial Court.

                        JUDGE                                       JUDGE



wasnik